Nobody Beats the Whiz(zer)

Justice Byron White's Early and Late Voting Record on Particular Criminal Procedure Issues
By Kenneth H. Tyler, Jr


Ken Tyler, a 2010 graduate of Albany Law School, was a senior editor of the Albany Law Review and a Dean Thomas Sponsler Honors Teaching Fellow. He is currently serving as an Appellate Court Attorney at the New York State Appellate Division, 4th Department.
The following study was prepared in conjunction with the Judicial Process Seminar, Fall 2010.

Byron White arrived at the Supreme Court with a résumé comparable with or superior to almost any other Supreme Court justice, past or present. A Rhodes Scholar, he served in the Navy during World War II, then attended Yale Law School, and thereafter clerked for Chief Justice Fred Vinson. Immediately prior to being appointed by President John F. Kennedy to the Supreme Court, he served in the administration as Deputy Attorney General under Robert Kennedy.


White’s lengthy judicial career, at 31 years on the Court (1962-1993), was the fourth longest of the century and makes him an interesting study, if for nothing more than the extrinsic reason that his longevity allows us to view him against a kaleidoscope of ideologically-disparate Courts. Serving courts presided over by Earl Warren, Warren Burger, and William Rehnquist, and rendering that service during an expansive and socially tumultuous period of modern American history, what can be said of White?


The scope of this study is restricted to cases at the “bookends” of White’s tenure: from 1962 to 1968 (the first six years of White’s tenure) and from 1988 to1993 (the last six years). More specifically, the focus is on several particular constitutional subcategories within the general criminal justice heading: Double Jeopardy, Right to Counsel, Miranda warnings, Cruel and Unusual / Eighth Amendment, and Search and Seizure. Additionally, the focus is limited to those cases from the first and last six years of White’s tenure that were “divided”—i.e., cases that were a “close call” and should thus be more revealing than 9-0 rulings.

Resort will only occasionally be made to specific language from the text of a given opinion, to either highlight an interesting point or bring home Justice White’s stance when presented with a particular set of facts. Sampling a fragment of an opinion can often be interesting, and occasionally revealing. But getting caught up in legalistic arguments is more likely to serve as a red herring than guide what is meant to be an objective analysis.*

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* Citations to references in this introduction are available in the paper.

Read the entire paper HERE.
View the complete slide presentation of charts HERE.